Mental Well-Being Of Children In Law

October 10th saw World Mental Health Day and LawCare launching their ‘LawCare Champions’ scheme which aims to appoint legal professionals in the UK to act as mental health and well-being advocates within the legal community. 

However, as any industry professional will have seen, there has been an increase in the need for solicitors to not only support others in the industry, but also their clients, especially children.   

In family law, there is, quite rightly, a focused drive towards the welfare of children, in both public and private law.  The law has evolved over many hundreds of years; from where a child was the possession of his father, to some semblance of ‘best interests’ by allowing the child to remain with the mother until the age of 7 and eventually Childrens Act defining that parents no longer had rights but responsibilities, and that the best interests of the child were paramount.  The recent push of the Domestic Abuse Bill and Divorce Bill further reinforces that removing conflict from children’s’ lives will help in their mental welfare.   

No fault divorce in the Divorce Bill is set to help end the blame game within a divorce and help with relations.  This will have an impact on the couples themselves but also children involved.  However, much conflict still arises when it comes to the issue of residency and contact regarding children.  Cafcass statistics have shown an increase in applications, from private law cases, year on year since the removal of Legal Aid in 2014.  Without Legal Aid people are less likely to seek legal advice from professionals and will go it alone.  If they had legal advice from the beginning there could be the possibility of a solicitor advising that a different route be taken, other than court, for example through mutual agreement after advice or through mediation. 

Rachel Frost-Smith, a Solicitor in Irwin Mitchell’s London family law team, said:  

“Families must then live with the day-to-day implementation of court orders, often leading to repeated litigation, resulting in children suffering from long-term behavioural problems and mental health issues… solicitors, we have a responsibility to try to assist our clients to find alternative solutions to a conflict. We use therapists, coaches and independent social workers to try and help families find the best outcome.” 

The former CEO of Cafcass, Anthony Douglas, has also stated: “court has become the default option for too many unhappy separators”, suggesting other means of dispute resolution are not being considered. “Quite simply, these families should not be in court. The court process risks escalating conflict to a point where it becomes harmful.” 

A recent Private Law Working Group’s Review of the Child Arrangements Programme (CAP 2014) highlighted that despite the principles of CAP being ‘essentially sound’ there needs to be more emphasis on out of court resolution of disputes, and that litigation should be avoided where possible.  The Working Group made a number of recommendations including the creation of a national non-court dispute resolution service, referred to as Family Solutions.   

This service would: 

“provide early information and help to families experiencing conflict so that they better understand the impact on children, strengthen their co-parenting skills, and facilitate access to therapeutic services for children who may be experiencing trauma” 

Despite the efforts made to minimise the risk to the mental health of children caught in the middle of relationship breakdown, through procedures and legislation, there will forever be an element of support sought from legal professionals.  Clients will look to their lawyer with hope that they are able to solve their problems but are often left disappointed with the outcome of their case or the pain and disruption the proceedings have caused.  It is up to solicitors to manage expectations as well as ensure clients are prepared for all possible outcomes, to highlight less acrimonious solutions and that the welfare of any children, both physically and mentally, be considered when they look to separate.  Sometimes in a fast–moving practice where a lawyer will see divorce and child contact cases on a continuous basis, they will become hardened to the human issues and emotions, where the mental wellbeing of the client can be easily overlooked.